Upper Tribunal (Immigration and asylum chamber), 2022-12-06, PA/04098/2020
| Appeal Number | PA/04098/2020 |
| Hearing Date | 29 November 2022 |
| Published date | 28 December 2022 |
| Date | 06 December 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/04098/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04098/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29 November 2022 |
On the 06 December 2022 |
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Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE ZUCKER
Between
CA (NIGERIA)
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. O Adebayo, Solicitor, David & Vine Solicitors
For the Respondent: Mr. T Lindsey, Senior Presenting Officer
Unless the Upper Tribunal or a court directs otherwise no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or her family. This direction applies to, amongst others, the appellant and the respondent. Any failure to comply with this direction could give rise to contempt of court proceedings.
DECISION AND REASONS
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This is an appeal by the appellant against a decision of Judge of the First-tier Tribunal Thapar (‘the Judge’) sent to the parties on 27 March 2021 by which her appeal against a decision of the respondent not to grant her leave to remain was dismissed. The appellant seeks international protection.
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Judge of the First-tier Tribunal Neville granted the appellant permission to appeal on all grounds by a decision dated 29 April 2021.
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The error of law hearing was originally listed before Upper Tribunal Judge Stephen Smith on 11 April 2022. Neither the appellant nor her legal representatives attended, and no reason was provided to the Upper Tribunal for their non-attendance. UTJ Stephen Smith considered it to be in the interests of justice to proceed with the hearing and subsequently dismissed the appeal on all grounds.
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Following the appellant filing an application for permission to appeal to the Court of Appeal dated 15 June 2022, UTJ Stephen Smith noted the reasons given for non-attendance before him at the error of law hearing, namely that neither the appellant nor her legal representatives, David & Vine Solicitors, had received notice of the hearing date. The application was accompanied by witness statements from the appellant’s daughter, CO, and Mr. O Adebayo, the latter subsequently representing the appellant before us. Following directions dated 13 September 2022, UTJ Stephen Smith set aside his decision under rule 43(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 by a decision dated 9 April 2022.
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The hearing de novo was listed before this panel on 29 November 2022.
Anonymity direction
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The Judge issued an anonymity direction, though no reasoning was provided as to why the appellant’s rights protected by article 8 ECHR were considered to outweigh the public interest in details of these proceedings being generally disseminated; the right of freedom of expression being protected by article 10 ECHR: Cokaj (anonymity orders, jurisdiction and ambit) [2021] UKUT 202, at [17]-[28]. We observe that there is a requirement that reasons be given when an anonymity direction is made.
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No party before us requested that the direction be set aside.
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Upon considering rule 14(1)(b) of the 2008 Procedure Rules and the general principle underlying UTIAC Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private, we are satisfied that it is presently in the interests of justice that the appellant is not publicly recognised as someone seeking international protection. We are satisfied that the appellant’s protected rights as established by article 8 enjoy greater weight than the open justice principle protected by article 10: re Guardian News and Media Ltd and Others [2010] UKSC 1, [2010] 2 AC 697.
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We confirm the anonymity direction above.
Background
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The appellant is a citizen of Nigeria and presently aged 71. She retired from full-time employment as a doctor in 2004. She was issued with a six month visit visa in March 2019 and subsequently entered this country to visit CO, a British citizen. Shortly after her arrival in this country, CO gave birth to the appellant’s granddaughter.
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On 27 August 2019, the appellant applied for leave to remain outside the Immigration Rules.
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She subsequently sought international protection, thereby voiding her application for leave to remain. She relied upon what she asserted to be the general lawless situation in Nigeria, and additionally the risks that she said were faced by women generally. She recited two specific instances where she was a victim of crime. In 2010 her home in the city of Ikorodu was targeted by thieves; she reported the incident to the area superintendent, but not to the police. She relocated to rented accommodation in Enugu in 2016 and three years later, in August 2019, she was informed by her cousin that this property had been burgled and vandalised whilst she resided in this country.
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The respondent refused the claim for international protection by a decision dated 18 June 2020.
Hearing before the First-tier Tribunal
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The CVP hearing was listed before the Judge, sitting at Birmingham Civil Justice Centre, on 1 February 2021. The appellant was unrepresented, and was aided by CO. A preliminary issue arose as to the service of documents, with the Judge recording at [8] of her decision:
‘8. I took care and time to ensure that all relevant documents were before the tribunal. I informed [CO] that the bundle submitted on behalf of the appellant was not fully uploading. [CO] advised that she had not seen a copy of the respondent’s bundle. [The presenting officer] advised that some copies of the documents within the appellant’s bundle that he received were blank. [CO] advised that this should not be the case. I stood the matter down for [CO] to resend all documents relied upon by email and for a copy of the respondents bundle to be sent to [CO]. I additionally allowed further time for the representatives to review each other’s documents.’
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Following the resumption of the hearing both the appellant and CO gave evidence and were cross-examined. The Judge dismissed the appellant’s appeal.
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The Judge found that the 2010 incident did not take place and, if it did, it had not targeted the appellant. The 2019 incident in Ikorodu was found to have been an opportunistic burglary of a property that had been vacant for over three years. The Judge concluded that the appellant had made only minimal approaches to the police, and there was no reason she could not approach them for protection upon her return to Nigeria if necessary. She had never been threatened or attacked herself. She had not experienced any of the indiscriminate violence to which she claimed she would be exposed, and would always enjoy the ability to relocate internally, as she had done previously. Her fears were found to be speculative.
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As to the human rights appeal, the Judge concluded that the appellant’s removal would not breach rights protected by article 3 and 8 ECHR.
Grounds of appeal
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The following grounds of appeal are advanced:
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The Judge’s conduct of the hearing was procedurally unfair because:
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the appellant did not have enough time to consider the contents of the respondent’s bundle, which was served at the door of the hearing, and the matter was stood down for only an hour, which was not enough time for the appellant and CO properly to consider its contents;
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the Judge created an atmosphere that made the appellant unable to present her case properly and thereby caused immeasurable unfairness to the appellant;
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the respondent breached a direction that the bundle must be served five days before the hearing, and the Judge wrongly allowed the bundle to be served at the hearing which prevented the appellant from being able to scrutinise the interview transcripts.
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Because the appellant was a litigant in person, the Judge should have made additional allowances to facilitate her participation in the process.
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The appellant’s right to a fair trial under article 6 ECHR was violated by the judge’s approach.
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Mr. Adebayo fused grounds (i) and (ii) at the hearing, identifying the heart of the challenge to be that the Judge should have intuitively appreciated that the appellant was not ready to proceed when the hearing resumed after the one-hour break.
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In respect of ground (iii) we observe the judgment in Maaouia v. France (app. no. 39652/08) (2001) 33 EHRR 42 where the Strasbourg Court confirmed that proceedings concerned with entry, stay and deportation do not concern a civil right or obligation capable of protection under article 6 ECHR. This principle was confirmed by the Strasbourg Court in MN v. Belgium (app. no. 3599/18) (5 March 2020), at [137], and recently re-affirmed domestically by Mr. Justice Swift in R (ALO) v. Secretary of State for the Home Department [2022] EWHC 2380 (Admin), at [16].
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In granting permission to appeal in April 2021, Judge of the First-tier Tribunal Neville reasoned, inter alia:
‘2. I am concerned at the lack of detail in the witness statement provided as to...
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